Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, James Sweeney, Kacie Weston, and Colleen Kennedy, Assistant United States Attorneys, were on the brief for appellee.

Robert B. Humphreys and Steven Schulman filed a brief on behalf of The Innocence Network as amicus curiae in support of appellants.

Stephen P. Braga filed a brief on behalf of The National Association of Criminal Defense Lawyers as amicus curiae in support of appellants.

Julia M. Jordan, Lee Ann Anderson McCall, and Elizabeth A. Cassady filed a brief on behalf of Former Judges and Prosecutors as amicus curiae in support of appellants.

Aderson Bellegarde Franç ois filed a brief on behalf of Howard University School of Law Criminal Justice Clinic & Civil Rights Clinic as amicus curiae in support of appellants.

Douglas Baruch, Jessica P. Neiterman, and Sujata Jhaveri filed a brief on behalf of Former Law Enforcement Officers as amicus curiae in support of appellants.

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

OPINION

Page 900

Glickman, Associate Judge :

In 1985, appellants were tried and convicted for the kidnapping, armed robbery, and first-degree felony murder while armed of Catherine Fuller on October 1, 1984. This court affirmed their convictions on direct appeal. Some twenty-five years later, appellants returned to Superior Court with motions to vacate their convictions pursuant to D.C. Code § 23-110 (2012 Repl.) and the Innocence Protection Act (" IPA" ), D.C. Code § 22-4135 (2012 Repl.). Appellants claimed that they did

Page 901

not receive a fair trial because the government withheld exculpatory and impeachment evidence in violation of its obligations under Brady v. Maryland,[1] and that newly discovered evidence, including witness recantations, established their actual innocence of the crimes against Mrs. Fuller. Appellant Yarborough additionally claimed that his trial counsel was constitutionally ineffective in failing to investigate his intellectual disabilities as grounds for suppressing the videotaped statement he made when he was arrested, which the government used against him at trial.

Appellants' motions were assigned to the Honorable Frederick H. Weisberg. He presided over a three-week evidentiary hearing on their claims in mid-2012. Judge Weisberg thereafter denied the motions in a written order. Before us now are the appeals from that decision.

We affirm. As we shall explain, we conclude that appellants' Brady claims fail because appellants have not shown a reasonable probability that the outcome of their trial would have been different had the government disclosed the withheld evidence in timely fashion. Appellants' IPA claims fail because the motions judge found the witness recantations to be incredible and appellants therefore have not established their actual innocence by a preponderance of the evidence. Finally, we reject Yarborough's ineffective assistance claim because he has not shown that he was prejudiced by his trial counsel's allegedly deficient performance.

Table of Contents

I. The Murder of Catherine Fuller and Appellants' 1985 Trial

A. The Government's Case at Trial

B. The Defendants' Alibis and the Government's Rebuttal

C. Verdicts and Direct Appeal

II. Appellants' Post-Conviction Motions: Brady and IPA Claims

A. Witness Recantation

1. Calvin Alston and Harry Bennett

1. Melvin Montgomery and Linda Jacob

B. Evidence Not Disclosed to the Defense

B. Evidence Not Disclosed to the Defense

a. The Witness in the Alley

b. James McMillan

c. James Blue

2. Impeachment Evidence

C. Expert Testimony

D. The Motions Judge's Decision

III. Analysis of Appellants' Brady Claims

A. Brady and the Applicable Standard of Review

B. The Witnesses in the Alley

C. James McMillan Evidence

1. The October 1984 Robberies

2. The 1992 Murder of A.M.

D. Ammie Davis's Accusation of James Blue

E. Impeachment Evidence

F. Cumulative Materiality of the Undisclosed Evidence

IV. Analysis of Appellants' IPA Claims

V. Yarborough's Claim of Ineffective Assistance of Counsel

A. Background

1. Yarborough's Statement to Police

2. Yarborough's Suppression Motion

3. The Hearing on Yarborough's Ineffective Assistance Claim

B. Analysis

VI. Conclusion

Page 902

I. The Murder of Catherine Fuller and Appellants' 1985 Trial

Shortly after 4:30 p.m. on October 1, 1984, Catherine Fuller left her home on foot to go shopping. Around 6:00 p.m., William Freeman, a street vendor, discovered her lifeless body lying in a garage in the middle of an alley between 8th and 9th Streets Northeast, just north of H Street. One of the garage doors was open, enabling Freeman to catch sight of Fuller's body when he entered the alley to relieve himself. Mrs. Fuller had been badly beaten and violently sodomized, and had suffered massive blunt force injuries, including a ruptured liver and broken ribs. Her clothing and property were found strewn about the garage and the alley. The police were unable to find the object used to commit the sodomy or to recover any usable fingerprints or other physical evidence that could identify the perpetrators. The medical examiner could not determine from Fuller's injuries how many persons were involved in assaulting her.

After conducting more than 400 interviews, investigators developed the theory that Fuller was assaulted and killed by a large group of teenagers who initially set out, on the spur of the moment, to rob her. A total of thirteen individuals believed to have been members of that group were indicted. Two of them, Harry Bennett and Calvin Alston, pleaded guilty and agreed to testify for the government. A third defendant, James Campbell, whose case was severed for trial after his attorney became ill, eventually pleaded guilty as well. The remaining defendants--the seven appellants before us now and their co-defendants Steven Webb, Alphonzo Harris, and Felicia Ruffin--went to trial in the fall of 1985.

A. The Government's Case at Trial

At the center of the government's case was the testimony of the two cooperating witnesses, Bennett and Alston. Bennett had pleaded guilty to manslaughter and robbery, Alston to second-degree murder. They provided similar accounts of the events leading to Fuller's death. According to them both, they were in a group of young men, including appellants, who were gathered in a park at 8th and H Streets Northeast on the afternoon of October 1, 1984, when they observed Fuller across the street. Alston admitted being the one who, after appellant Catlett sang a song about needing money, suggested that the group rob Fuller. Members of the group split into two bodies and crossed the street to attack Fuller at the alley between 8th and 9th Streets. Bennett, Alston, and others, including appellants, punched and kicked her, hit her with a stick or board, knocked her to the ground, and robbed her of her money and jewelry. Fuller then was dragged into a garage and stripped nearly naked. As some in the group held her legs and others stood and watched, appellant Rouse took a pole or pipe-like object and shoved it into her rectum. The group then dispersed.

Although Bennett and Alston agreed on the preceding outline of events, they differed on some important matters. Notably, while Bennett testified that appellant

Page 903

Yarborough did not accompany the group into the alley, Alston recalled that Yarborough actively participated in kicking Fuller as she lay on the ground there. And while Bennett remembered that Alston and Webb held Fuller's legs as Rouse sodomized her, Alston thought appellants Overton and Charles Turner did so. In addition, Bennett and Alston each had made prior inconsistent statements to the police and the grand jury regarding who was present in the park and who participated in attacking Fuller.

Four witnesses to the crime corroborated Bennett and Alston's account. Two of them, Carrie Eleby and Linda Jacobs, testified that they came upon the attack when it was already in progress. Eleby implicated appellants Catlett, Overton, Christopher Turner, Smith, and Rouse, as well as Alston and Webb. She also put appellant Yarborough in the alley, but she did not remember seeing him attack Fuller. Jacobs saw Christopher Turner and Smith in the alley. Both witnesses saw Rouse sodomize Fuller.

Eleby and Jacobs had significant credibility problems. Both were PCP users. Eleby contradicted herself, could not keep names and dates straight, and claimed she did not remember anything she had told the police or the grand jury. Jacobs, too, was a difficult witness who contradicted herself on the stand and had trouble answering questions. Moreover, each witness's account was impeached or contradicted by other testimony. For example, contrary to her testimony at trial, Eleby told police that she and Jacobs arrived at the alley only after the police and the morgue staff were there, and she told the grand jury that appellant Smith did not hit or kick Fuller. In addition, Eleby testified that she and Jacobs were with their friend Tawana when they heard a scream coming from the alley, turned around and saw a group attacking a woman. But Jacobs testified they were not with Tawana and did not hear a scream. She claimed they were prompted to enter the alley by their friend Annette Taylor. But Taylor denied this and testified that she was nowhere near the scene at the time.

The other two eyewitnesses were Melvin Montgomery and Maurice Thomas. Montgomery testified that he saw appellants Catlett, Charles Turner, Overton, and Rouse standing with others in the park. Montgomery heard Catlett singing a Chuck Brown song about needing money, saw Overton point across the street at Fuller, and watched as those four appellants and others crossed the street in her direction.[2]

Fourteen-year-old Maurice Thomas testified that he passed the alley and saw a group of people surrounding a woman. Those he saw included appellants Catlett, Yarborough, Rouse, Charles Turner, and Christopher Turner, and may have included appellant Smith and Harry Bennett.[3] Thomas saw Catlett pat down the woman and then place something in his pocket. Catlett then hit her and when she fell to the ground, the rest of the group assaulted her. Later that evening, Thomas heard Catlett tell someone that " we had to kill her because she spotted someone" Catlett was with.

The government put on other important evidence of appellants' guilt in its case-in-chief. First, the jury was shown a redacted videotape of Yarborough's statement to the police, in which he placed himself in the park, the alley, and the garage before

Page 904

and during the attack on Fuller. (The statement was admitted only against Yarborough.)

Second, Kaye Porter testified that she had asked Catlett about the rumors she had heard concerning the Fuller murder. Catlett responded that " all he did was kick her and somebody else stuck the pole up in her" because " she wasn't acting right." [4] Finally, Detective Daniel Villars testified that he overheard Christopher Turner tell Overton that the police lacked sufficient evidence against them because they had not touched Fuller's body and so did not leave any fingerprints. Overton agreed that the police lacked evidence and commented that he knew the two people who gave them up. Turner replied that he knew one of the two, but that he wondered how the police knew he, Overton, and " everybody" were in the alley.

B. The Defendants' Alibis and the Government's Rebuttal

Appellants Overton, Smith, Christopher Turner, Charles Turner, and Rouse put on alibi defenses.[5] Overton's alibi was supported by three witnesses. Marita Michaels testified that she was in the park at 8th and H Streets with Overton and others from about 10:00 a.m. to about 2:30 p.m. on October 1, drinking and smoking marijuana. Michaels said that she and Overton left the park together and that she saw him walking towards his house, appearing very drunk. Overton's grandmother Edna Adams, and his sister Lottie Overton, testified that he left the house that morning, and returned home drunk between 2:00 and 3:00 p.m. Adams said he remained home and slept until 7:30 p.m.; Overton's sister confirmed that he remained at home on October 1 until at least 5:00 p.m., when she left the house herself. Overton's family members admitted, however, that his grandmother's memory was weak and that his sister and mother had reminded her of many of the details in her testimony. Adams was impeached on various details with her grand jury testimony. Lottie Overton was impeached with her grand jury testimony that Overton had asked her to ask people he knew in the park to be witnesses for him, which was contrary to her trial testimony that he did not do so. Even after being presented with the transcript, she denied having said this to the grand jury. But Adams testified that Overton did tell Lottie and his mother to go ask certain people to be witnesses. Overton himself did not testify at trial.

Smith and Christopher Turner testified that they were at Smith's house on October 1. They said they first learned of Fuller's death later that night in a phone call from a girl named Renee Walker. Three of Smith's relatives corroborated his and Christopher Turner's alibis. Before the grand jury, however, they testified that Smith knew about Fuller's murder as early as 6:00 p.m. on October 1.

Rouse and Charles Turner had conflicting alibis. Rouse testified that he spent the afternoon of October 1 at a recreation center, restaurants and arcades with Charles Turner and a friend named Christopher Taylor, that he went to the alley at 8th and H Streets only after the police were already there, and that he then went at around 7:00 p.m. to the home of his

Page 905

girlfriend Catrina Ward. But Charles Turner testified he was at home at the time of Fuller's murder and left there only when Rouse and a friend named Vincent Gardner came by and told him someone had been killed in the alley behind H Street.

Christopher Taylor corroborated Rouse, but he was impeached with his admissions to police that he was in the park and heard the group decide to assault Fuller, and that he was in the alley and saw the murder. Catrina Ward confirmed that Rouse came to her house on the night of October 1. She also testified, however, that she saw blood splattered on the bottom of Rouse's pants leg, and that on later occasions Rouse told her he saw Fuller get killed and boasted that he " did the worst thing to that lady in the alley." Charles Turner was impeached with his statement to the police that Rouse and Gardner did not tell him about the crime. And Gardner, testifying as a rebuttal witness, denied going to Charles Turner's house or going anywhere with Rouse on the night of October 1.

C. Verdicts and Direct Appeal

The case was submitted to the jury on December 9, 1985. On the morning of December 16, the jury asked to see the videotape of Yarborough's incriminating statement to the police. That afternoon, after seven days of deliberations, the jury returned guilty verdicts against Catlett, Rouse, Smith, Charles Turner, Yarborough, and Webb; at the same time, the jury found their co-defendants Harris and Ruffin not guilty. The jury deliberated for an additional two days before returning its verdicts of guilty against the remaining defendants, appellants Overton and Christopher Turner.

This court affirmed the convictions on direct appeal.[6] In doing so, we acknowledged " some conflict in the testimony of the government's witnesses regarding exactly when each appellant joined in the beating," but stated that " there was overwhelming evidence that each of them was involved at one time or another." [7] For the most part, appellants' claims on direct appeal do not bear directly on the claims now before us.[8]

II. Appellants' Post-Conviction Motions: Brady and IPA Claims

In support of their Brady and IPA claims, appellants presented witness recantations, expert witness testimony, and other evidence at the hearing on their post-conviction motions in 2012 in an effort to show that the government withheld materially exculpatory and impeachment evidence from them at trial, and that they were actually innocent of Fuller's robbery, kidnapping, and murder. Appellant Yarborough also testified and presented evidence in support of his ineffective assistance claim. In opposition, the government presented testimony from the investigating detectives and the prosecutors who worked the case in 1984 and 1985. This section of our opinion discusses the evidence relevant to appellants' Brady and innocence claims; we discuss the evidence particularly relevant to Yarborough's

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